No, this does not a commentary on a lawsuit regarding a nutritional health claim against Red Bull. Instead it is about a lawsuit filed by D.C. United striker Charlie Davies against a D.C. bar, the Shadow Room, and Red Bull alleging that the two are liable under D.C.'s dram shop law for over serving a patron who went on to severely injure Davies and kill a passenger in his vehicle. The suit against Das Enterprises (which owns the bar) and Red Bull North America is pending in D.C. Superior Court. The driver at issue in the case, Maria Espinoza, was convicted of involuntary manslaughter. The suit alleges that Red Bull hosted an event at the D.C. bar at which the bar continued to serve Espinoza despite her visible intoxication. Davies claims that in addition to his physical and medical damages, Red Bull and the bar should be liable for damages due to his loss of the opportunity to play in the 2010 World Cup games in South Africa.

Davies' suit against Red Bull faces some problems. Proving social host liability, as opposed to holding a licensed establishment liable, can be tricky and varies by state. D.C. explicitly does not recognize social host liability on its own, although the case law is murky. In addition to the difficulty in tying the claims to Red Bull, Davies claimed damages related to his playing at the World Cup are speculative at best (my sixteen-year old son's opinion of his ability to score goals notwithstanding). Finally, Davies faces some comparative fault himself given he was breaking team curfew at the time of the accident.

This is a sad, high-profile incident and that alone may drive the outcome far more than the strength of the legal claims. As is often true in the hospitality industry, the media exposure is sometimes a far bigger concern than the legal costs themselves.

The recent spate of stage collapses resulting in injuries, death and property destruction highlights an important area of consideration for hospitality providers. What are the providers duties in terms of guest safety and monitoring external conditions that may alter the usual conditions. Of course, no hospitality provider wants their guests injured, but how far does their potential liability extend? Natural disasters and acts of terrorism are frequent exclusions for coverage as well, further complicating this analysis.

Sometimes in the hospitality industry, you can’t win for trying. Hilton Hotels is learning this lesson the hard way. Last week, a former guest commenced a class action suit in federal district court in California against the Hilton hotel group based on the fact that he was charged $.75 for a newspaper he received, but did not request. The suit alleges that the newspaper charge was fraudulent because it was disclosed in small print on the key-card sleeve, which he admittedly received upon check-in, and because the paper charge was not itemized on his bill at check out. The plaintiff, Rodney Harmon, asserts claims of Unfair Business Practices, Violation of the Consumer Legal Remedies Act, and Unjust Enrichment.

Of course the only winners in the suit, which seeks an injunction, monetary damages and legal fees, are the plaintiff’s attorneys who will seek huge class action counsel fees for a case that involves only nominal damages and questionable liability for the putative class.

It seems quite plausible that Hilton, in an attempt to accommodate guests who did not want a paper, came up with the system of providing a $.75 credit for those guests who affirmatively asked not to receive one. The deed has not gone unpunished as now Hilton must defend claims that it was intentionally deceiving customers by not itemizing the paper charge bill. It is these unique issues faced by the Hospitality industry that will be covered in depth at the upcoming Hospitality Seminar, Sept 22-23 in Scottsdale. Download the brochure describing the full breadth of topics covered and sign up today!

Minnesota is finally in the news for something other than snow and cold. News outlets across the country are reporting on the latest happenings in the Minnesota legislature.

The Minnesota Legislature appears poised to join 23 other states in enacting legislation to restrict lawsuits based on weight gain. The Minnesota bill, called the “Personal Responsibility in Food Consumption Bill” and colloquially referred to as “the cheeseburger bill” is expected to pass both the Minnesota House and Senate this session and would prohibit lawsuits against entities throughout the food distribution chain when the claim is based on weight-gain from long-term consumption of a food or non-alcoholic beverages. There are exemptions in the bill for claims based on violation of state or federal law and claims of weight gain due to mislabeling of products.

The debate over the bill has been humorous at times, including members of the legislature referring to their consumption of Girl Scout cookies and cheeseburgers. Not surprisingly, the Minnesota Association for Justice opposes the bill, as it has in each of the previous attempts to pass the legislation.

It seems that the duties of a premises owner may be expanding rapidly. The Michigan Supreme Court recently held that a restaurant may have a duty to inspect things such as the toilet paper dispenser in a bathroom stall when employees do restroom checks, to make sure the dispenser is not in an unreasonably dangerous condition. Both the Wall Street Journal Law Blog and Above the Law have a field day with the facts in this case in which a woman injured her hand (and claims it is not yet healed so she cannot work, but can still bowl three years later) when the toilet paper dispenser landed on her hand in the bathroom stall. Given that the Court held that the dispenser might be considered unreasonably dangerous, it seems the manufacturers of toilet paper dispensers might also now be on notice of this potential hazard.

Apparently the Ganns of Tennessee believe so. Late last month they filed suit against a local restaurant, its related corporate entities, and an unknown waiter, claiming that the waiter provided their son (age not given) with a "deleterious" hot sauce. The Complaint alleges that after, putting the sauce in his chili and tasting it, Caleb Gann immediately broke out in hives, had trouble breathing, and was taken to the hospital with gastro-intestinal problems. After calling the restaurant, Steak-n-Shake, to complain, the Gann's were informed that the sauce was "Mega Death Hot Sauce" produced by Blair's Sauces and Snacks.

A few thoughts on this-- and someone on the hospitality side might have additional thoughts: if this is a situation in which the hot sauce itself is unreasonably dangerous, why isn't Blair's, the manufacturer named? (After all, the Complaint alleges it should require a warning and that it contains ingredients 500 times hotter than jalapeño peppers). And, shouldn't the name itself and the graphics on the bottle (which include a skull dangling from the top) serve as a warning? Hopefully the picture of the bottle will post as an illustration-- it makes a pretty good case for assumption of the risk.

In addition to the legal questions, one has to wonder how many people out there are online ordering Blair's Mega Death Hot Sauce just to try it themselves.

This is a great example of why Court's dockets are so backed up. Smallwood v. NCSoft Corp., No 1:09-cv-00497 (D. HI, Aug. 4, 2010) Plaintiff sued an online game manufacturer on the grounds that he suffered emotional distress because he is now blocked from playing the game (after spending over 20,000 hours at it over the course of a few years). The plaintiff appeared pro se (despite actually having a lawyer assist him) and twice had his complaint dismissed for failure to state a claim on jurisdictional grounds because he didn't adequately plead jurisdiction and the elements of fraud. The Court (U.S. District Court, HI) has now issued its third opinion and only now dismissed some of the claims with prejudice. And this was no small opinion-- in it, the Court discussed the pleading standards for fraud, completed a conflict of law analysis between Texas and Hawaii law, analyzed the extent to which claims could be waived by contract, and then proceeded to look at the specific allegations the plaintiff made to see if they could reach the gross negligence standard needed to get around the limitations in the user agreement and therefore meet the jurisdictional requirement. The Court also included a discussion of the leniency afforded pro se litigants and then why, under the facts of this case, it was no longer affording the plaintiff that leniency.

Now the other claims (defamation/libel/slander, negligence, gross negligence, and negligent infliction of emotional distress) will proceed yet again. Interestingly, he really isn't claiming that the manufacturer should have warned against the addictive nature of the game, it seems more that he is arguing that the Company should have warned that he might not have access to the game forever. All his damages stem from his alleged "withdrawal" after no longer being able to play. I guess that means it is time for yet another warning in the user agreement.

The Masters of Product Liability Litigation: The Stars Come Out to Shine is the theme for this year's conference, and it's sure to be a great program. There will be presentations by outside and in-house counsel experienced in issues such as trial tactics, jury selection, the U.S. Consumer Product Safety Commission, warnings, and Daubert issues to name a few. In addition, there will be 18 Specialized Litigation Group Workshops where you can hone your skills in specific practice areas. The Young Lawyers have a stellar slate of presenters designed for our less experienced attorneys to hone their more basic skills. More...